Influencer’s speech considered as advertisement

The publication of the guideline: During the General Assembly on the 7th of June 2017

The establishment of the guideline: Last May by the ARPP

What happened:

ARPP’s goal is to maintain high standards in terms of legal, honest and truthful advertising, which is the interest of both consumers and the advertisers. Digital advertising is one of the main concerns of the ARPP and its work in this domain is fundamental.

Its mission is to uphold the balance between creativity as well as the advertiser’s freedom of expression and the responsibility and respect due to the consumers. The use of influencers by advertisers is an issue the ARPP is keeping a close eye on.

Indeed influencers have a real impact today and are followed by thousands of people through social media. They represent an individual who expresses a certain point of view or gives advice (written/audio/visual) in a specific domain and with its own style or treatment that its audience can identify to.

The influencer can have an editorial role by writing content as a self-employed individual or he can work for a third-party outside of the scope of professional advertising regulation. He can also collaborate with a brand for the publication of content. If so, he generally has to mention the products/services that the brand wants to promote.

This second option has been the subject of long debates for the European Advertising Standards Alliance and all the self-regulatory organisations in Europe.

They have analysed communications from influencers to define their specificities and they have identified different ways for the influencers to express themselves. This lead to the adoption by the French Self-Regulatory Advertising Body of a new provision included into the existing guideline: “Recommandation Communication Digital Advertising”. Two key lessons can be drawn from this new provision.

Firstly, influencers must in all circumstances bring the existence of a commercial collaboration to the attention of the public. The ARPP specifies that unless it is clear for consumers, an explicit indication must enable the public to identify instantly this commercial collaboration. This identification can be done by any means (in a speech, in the text accompanying the content, by a comment in a video…) no matter how the content is accessed. As in UK, they will have to disclose that they received free products from the brand.

Secondly, certain communications made by the influencers in collaboration with a brand music be analysed as “advertisement”.

This distinction is based on these three criteria:

When the content is performed in the scope of reciprocal commitments (for example if the influencer is paid or receives a counterpart) ;

When the announcer or its representatives exercise a preeminent editorial monitoring (in particular by imposing speeches, scenarios…) and when they require approving any content before its publication ;

When the influencer’s speech is meant to promote a product or service (promotional speeches, verbal or visual presentations with a promotional goal).

If it cumulatively meets these criteria, the communication will be considered as an ad and will be submitted to all ARPP’s ethical standards and good practices.

This new provision has immediate force of law for any advertisers and influencers.

Why this matters:

Before this recommendation, there were no clear rules applying to influencers in France. Therefore their posts were considered as advertisement as soon as they received money or free/discounted goods in exchange for posting about the goods in their online feeds. This recommendation brings a new condition for a speech to be considered as an ad which is the control of the content by the brand. It approximates French law to the English standards. However we must remind that ARPP’s recommendations are not mandatory for judges and we will have to wait and see how French courts will take into consideration this new condition.